The main legal point established in the judgment is the necessity of recording reasons and application of mind by the Magistrate when passing a summoning order, especially when the Magistrate's view differs from that of the investigating agency.

JUDGMENT

Manoj Kumar Ohri, J. - The present petition has been filed under Article 227 of the Constitution of India read with Section 482 Cr.P.C. seeking setting aside of the summoning order dated 02.08.2019 passed by the learned ACMM-II, Patiala House Courts, New Delhi in Criminal Case No. 18409/2018 arising out of FIR No. 357/2008 registered under Sections 406/420/120B IPC at Police Station Connaught Place, New Delhi.

2. Learned Senior Counsel for the petitioner has assailed the impugned order primarily on the ground that despite the petitioner's name being kept in column No. 12 of the charge sheet, the petitioner has been summoned by the learned Magistrate vide a non-speaking order which shows completenon-application of mind. He submits that the petitioner was never directly or indirectly associated with the activities of the complainant/respondent No. 2. It is also stated that the petitioner was neither signatory to any agreement nor participated in any of the discussions.

3. It is further submitted that finding no evidence against the present petitioner, the investigating agency had kept him in column No. 12 of the charge sheet. It was next submitted that the complainant is guilty of forum shopping as prior to the registration of the FIR, he had filed a complaint on 12.04.2008 with the S.H.O., Police Station Udai Mandir, Jodhpur, Rajasthan, a complaint before S.H.O., Paschim Vihar, Delhi on 03.05.2008 and a complaint before the EOW, New Delhi on 06.05.2008.

4. Learned Senior counsel would submit that a perusal of the first complaint would show that the concerned S.H.O. had marked the same to a Sub-Inspector for investigation. In the Status Report filed before the learned Metropolitan Magistrate, it has been mentioned that the Investigating Officer visited Jodhpur and interacted with the Investigating Officer at Police Station Udai Mandir, who informed him that the complainant was called a number of times to join the enquiry but he never joined. Rather, the complainant chose to file an application under Section 9 of the Arbitration and Conciliation Act, 1996 before the learned District and Sessions Judge, Jodhpur in which the Court appointed an arbitrator. The complainant again did not promptly participate in the arbitration proceedings and resultantly, the proceedings were terminated vide order dated 08.06.2017.

5. It is stated that in none of the above proceedings, the complainant made a whisper against the present petitioner.

6. As per the Status Report filed before the learned Metropolitan Magistrate, while an enquiry was pending with the EOW, New Delhi, the complainant filed an application under Section 156(3) Cr.P.C on 20.05.2008 before the learned ACMM, Patiala House Courts, New Delhi mentioning jurisdiction of Police Station Connaught Place, Delhi. The said complaint was accepted overlooking the fact that no complaint was filed in Police Station Connaught Place. The Court directed registration of a case and resultantly, the present FIR came to be registered at Police Station Connaught Place. This FIR was later transferred for investigation to Police Station EOW, New Delhi.

7. It has been submitted that in the aforementioned complaint filed under Section 156(3) Cr.P.C, the complainant levelled allegations against the petitioner for the first time. It has further been submitted that though investigation was carried out for a period of 10 years, no incriminating material was found against the present petitioner, for which reason, his name was kept in column No. 12 of the charge sheet. It is urged that the present matter is a fit case where summoning order is liable to be set aside, being arbitrary and having been passed without application of judicial mind.

8. Learned APP for the State has reiterated the stand of the investigating agency that no material was found against the present petitioner during the course of investigation.

9. Learned counsel for the complainant, on instructions, has stated that he has no submissions to m